Digest:A judge may preside in a proceeding in which his/her administrative
judge’s spouse appears as an attorney, in the absence of any other
disqualifying factor and assuming he/she can be fair and impartial, even
if a party or counsel objects. The judge is not required to disclose the
attorney’s marital relationship but may do so if he/she wishes without
incurring any obligation to disqualify him/herself.

Three judges within the same judicial district state that “an attorney
who frequently appears before each of us [is] married [to] the [a]dministrative
[j]udge for our district.” Although the inquiring judges believe that the
administrative judge and his/her attorney spouse have conducted themselves
in accord with their professional and ethical obligations, the judges are
concerned about a possible appearance of impropriety “given the volatile
nature of the matters which we must adjudicate.” The judges ask for guidance
on their disclosure and disqualification obligations, if any, when the attorney
appears before them.

A judge must always avoid even the appearance of impropriety (see 22
NYCRR 100.2) and must always act to promote public confidence in the
judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a
judge must not allow family, social, political or other relationships to influence
the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must
disqualify him/herself in a proceeding in which the judge’s impartiality might
reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific
circumstances as required by rule or by law (see generally id.; Judiciary Law
§14). For example, a judge must exercise disqualification if he/she has a
personal bias or prejudice concerning a party or knows that he/she has an
interest that could be substantially affected by the proceeding (see 22 NYCRR
100.3[E][1][a][i]; 100.3[E][1][c]; 100.3[E][1][d][iii]).

The question presented here appears to be a matter of first impression.
The inquiry reveals no direct connection, whether social, financial, or
otherwise, between the inquiring judges and the attorney who appears before
them. The inquiring judges believe that they can be fair and impartial and
that there is, in fact, no impropriety based on their professional relationship
with the attorney’s spouse, who is their district administrative judge.
However, the inquiring judges are concerned that some attorneys or litigants
who appear in their court might argue that this indirect relationship creates an
appearance of impropriety.

According to the Unified Court System’s website, administrative judges
generally are “responsible for the on-site management of the trial courts,” and
district administrative judges are more specifically “responsible for supervising
all courts and agencies” within a judicial district (seehttp://www.nycourts.gov/admin/directory.shtml [Jan. 3, 2012]). Among other
managerial duties, a district administrative judge is responsible for judicial
assignments within his/her judicial district.

The Committee notes that, regardless of the specific details of court
administration, the inquiring judges are themselves duly elected or appointed
public officials who are vested with their own independent authority and
obligations as judicial officers. The Rules Governing Judicial Conduct require
all judges to personally observe high standards of conduct “so that the
integrity and independence of the judiciary will be preserved” (22 NYCRR
100.1 [“An independent and honorable judiciary is indispensable to justice in
our society”]). It is thus critically important to protect and preserve both the
fact and the appearance of the independence of every judge.

Notwithstanding the novelty of the question, two prior Opinions provide
some useful guidance. In Opinion 98-09 (Vol. XVI), the Committee advised that
the sibling relationship between an attorney and the chief judge of a city court
does not bar the attorney sibling’s practice of law before the other city court
judges. Thus, implicitly, the chief judge’s administrative responsibilities as
“the assigning and scheduling judge for the Court” did not create a conflict for
the other City Court Judges (id.). More recently, the Committee advised that
the judges within a judicial district are not disqualified from presiding over
matters involving a “landlord who owns the building that houses the
administrative offices of the judicial district” and are also not required to
disclose the landlord/tenant relationship (Opinion 10-60). In this Opinion, the
Committee noted that, although the Office of Court Administration
“administers all the courts in New York State, including the inquiring judges’
court,” the landlord-tenant relationship “does not create any appearance of
impropriety that could cause someone to reasonably question the [inquiring]
judges’ ability to be impartial” (id.). In both instances, the Committee
declined to impute a conflict on the administrative level to all judges within
the same administrative unit.

Likewise, the Committee concludes that here the marital relationship of
the inquiring judges’ district administrative judge is sufficiently remote from
the inquiring judges that it does not, in and of itself, create any reasonable
appearance of impropriety for them and thus neither disclosure nor
disqualification is required. In reaching this conclusion, the Committee is
mindful that each judge must search his or her conscience and determine
whether recusal is the appropriate course to be followed. Where
disqualification is not mandatory, however, it remains a “discretionary
decision within the personal conscience of the court” (People v. Moreno, 70
NY2d 403, 405 [1987]).

The judges may, of course, choose to disclose the relationship if they
wish to do so. Unlike situations in which the Committee has mandated
disclosure, the purely prophylactic disclosure contemplated here will not
require the judges’ disqualification when a party is unrepresented (compare
Opinion 11-127 with Opinions 07-158; 05-152). And, even if a party or counsel
objects, the judge retains the discretion to preside under these circumstances
(cf. People v Moreno, supra).

Therefore, in the Committee's view, any one of the inquiring judges may
preside in a proceeding in which their administrative judge's spouse appears as
an attorney, in the absence of any other factor that would warrant
disqualification and assuming he/she can be impartial, and need not disclose
the relationship to the parties or counsel.